NEVILLE JOHNSON LTD
STANDARD TERMS AND CONDITIONS OF PURCHASE
The following standard terms and conditions of Purchase shall be applied to all Purchase Orders raised by the Company.
- 1. DEFINITIONS
In these Conditions (unless the context otherwise requires):
1) “the Buyer” shall mean (Neville Johnson Ltd or Tom Howley Ltd or any BHID Group Company);
2) “the Seller shall mean the person, firm or company to whom the Order is addressed;
3) “the Goods” means the articles or things or any of them described in the Order;
4) “the Services” means the Services described in the Order to be undertaken by the Seller of the goods;
5) “the Specifications” means the technical description (if any) of the Goods or the Services contained or referred to in the Order;
6) “the Order” means the order placed by the Buyer for the supply of the Goods or the performance of the Services;
7) “the Contract” means the contract between the Buyer and the Seller for the supply to the Buyer by the Seller of the Goods and/or Services consisting of the Order, these Terms and Conditions, any other documents (or parts thereof) specified in the Order and the Seller’s acceptance of the Order and if there shall be any inconsistency between such documents they shall have precedence in the order hereinbefore listed;
8) “supply” shall include a sale, lease, hiring or loan of the goods;
9) words in the singular shall include the plural and vice versa;
10) reference to any gender shall include the others; and
11) references to legal persons shall include natural persons and vice versa.
- 2. GENERAL
1) These Conditions shall be deemed to be incorporated in the Contract and in the case of any inconsistency with any letter incorporating or referring to these conditions or any acknowledgement of the order, letter or form of contract sent by the Seller to the Buyer or any communication sent by the Seller to the Buyer whatever may their respective the provisions of these Conditions shall prevail unless expressly varied in writing and signed on the Buyer’s behalf.
2) Any concession made or latitude allowed by the Buyer to the Seller shall not affect the strict rights of the Buyer under the Contract.
3) If in any particular case any of these Conditions shall be held to be invalid or shall not apply to the Contract the other Conditions shall continue in full force and effect.
- 3. ACKNOWLEDGEMENT
Unless otherwise agreed by the Buyer in writing the Buyer shall be bound by the Order only if:-
1) it is placed on its official Order Form bears an order number and is issued by a duly authorised signatory of the Buyer; and
2) the Seller accepts it in writing within seven days of the date of the Order or within such other period as may be specified in the Order.
- 4. QUALITY AND DESCRIPTION
The Goods or the Services shall:-
1) conform as to quantity, quality and description with the particulars stated in the Contract;
2) be of sound materials and workmanship and, in particular, (in the case of the Goods) be new and in good condition;
3) be equal in all respects to the Specification and or the samples or patterns provided by either party and accepted by the other;
4) be capable of any standard performance specified in the Contract;
5) if the purpose for which they are required is indicated in the Contract either expressly or by implications, be fit for that purpose.
- 5. INSPECTION TESTING AND SAMPLES
1) If so required by the Buyer and the Seller shall submit samples of the Goods for the Buyer’s approval before the bulk of the Order is delivered or before the bulk of the Services is performed (as the case may be). Such examples should be clearly marked as such for identification by the Seller and will be retained by the Buyer until the Services are completed and accepted or the bulk of the Goods have been delivered and accepted.
2) The Buyer shall be entitled to inspect and test the Goods during manufacture, processing or storage but any such inspection testing shall not be construed as acceptance of the Goods or Services. If the Buyer exercises this right, the Seller shall provide or shall procure the provision of all such facilities as may reasonably be require by the Buyer therefor.
3) If as a result of any inspection or test under paragraph (2) of this Condition the Buyer’s representative is of the reasonable opinion that the Goods or Services do not comply with the Contract or are unlikely on completion of manufacture or processing so to comply he may inform the Seller accordingly and the Seller shall at the request of the Buyer promptly take such steps as may be necessary to ensure such compliance.
4) Nothing herein shall prevent the Buyer retaining all or any of the defective Goods and/or Services and from carrying out at the Sellers expense any such further work on them which in the reasonable opinion of the Buyer is necessary to ensure that the Goods conform to the Contract nor shall the Buyer be prevented from the purchase elsewhere of replacements for such defective Goods or from having such defective Services re-performed by a third party. The Seller shall indemnify the Buyer against all losses or expenses thereby incurred by the Buyer.
- 6. DELIVERY
1) The Goods properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport shall be delivered by the Seller at the time specified in the Contract or as subsequently agreed by the Seller at the time specified in the Contract or as subsequently agreed in writing by the parties.
2) Unless the Seller is instructed in writing to the contrary, delivery shall be as per Incoterms 2000 by default in UK supplied CIP named person or named place of destination specified in the Buyers order. The Buyer reserves the right to collect the Goods in its own vehicles in which event the Seller shall make due allowance to the Buyer in respect of any carriage charges not incurred. Any carrier appointed by the Seller or specified by the Buyer shall not be deemed top by the Buyers agent.
3) The Seller shall comply strictly with all delivery instructions of the Buyer and failure to do so shall entitle the Buyer to cancel its order (in whole or in part) and (without prejudice to any of the Buyer’s other rights) to purchase goods in substitution for the Goods elsewhere and set-off against any sums due to the Seller all loss, cost expenses thereby incurred by the Buyer.
4) Unless otherwise agreed by the Buyer in writing, it shall have no obligation to pay or return packing cases, cages, skids or other articles used for packing the Goods whether or not reusable. Any charge in respect of articles used for packing shall be reimbursed by separate account and shall in any event be credited in full to the Buyer upon return.
5) The time of delivery of the Goods and/or the performance of the services shall be “Time is of the essence of the Contract”. If the Goods are not delivered or the Services not performed within the time specified in the Contract the Buyer shall be entitled to cancel the Contract forthwith and seek liquidated damages, without prejudice to any other of its rights.
6) All Goods should be accompanied by a detailed Advice Note or Packing Slip detailing the Purchase Order Number and giving full particulars of the Goods supplied except when such Goods are sent directly to premises of the Buyers customer when the Advice Note sent with the Goods should not show the Sellers name. A copy of the Advice Note or Packing Slip must be sent to the Buyer on the day upon which the Goods are delivered and an invoice stating the Purchase Order Number and the Buyers Part Number must be promptly delivered to the Buyer and in any event within 3 days of the date of the despatch of the Goods.
7) Where the Goods and/or Services are ordered for deliver or execution over a period of time the Buyer reserves the right (without prejudice to any of its other rights) to vary the times for such delivery or execution upon giving the Seller reasonable prior notice.
8) Unless previously authorised in writing by the Buyer, the Buyer shall not be liable to pay for (or have any liability whatsoever in connection with) any quantity of Goods delivered in excess of the quantity specified in the relevant order of the Buyer and any such Goods shall be at the sole risk of the Seller. The Buyer reserves the right to accept the excess quantities or return any such excess to the Seller at any time at the Sellers risk and expense.
- 7. STORAGE
If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Seller shall is his storage facilities or at an agreed third parties facilities permit storage of the Goods by mutual agreement, insure them against loss or damage by accident, fire, theft, flood and all other perils and safeguard them and take all reasonable steps to prevent their deterioration until their actual delivery and transfer of title takes place.
- 8. BUYER’S MATERIAL AND EQUIPMENT
1) All drawings, (including the Specifications) and information (hereinafter called “the Material”) supplied by the Buyer to the Seller in connection with the Contract and the terms of all orders of the buyer placed with Seller are confidential and the Seller and its officials and employees shall not at any time disclose the same to any third party without the Buyers prior written consent.
2) All jigs, tools, moulds, patterns and other equipment (herein called “the Equipment”) supplied to the Seller or ordered by the Buyer from the Seller for the execution of the Contract and the Material shall be clearly identified as property of the Buyer, maintained in good condition by the Seller and the Seller shall indemnify the Buyer against all loss thereof or damage thereto whilst the same are in the Sellers possession or control.
3) The Material and Equipment shall only be used for the purpose of manufacturing and supplying the Goods or performing the Services for the Buyer and shall remain the Buyers property at all times.
4) When the Goods are designed created or otherwise developed by or for the Seller pursuant to the Contract, then all intellectual property rights therein or relating thereto throughout the world including, without limitation, patents, copyrights, design rights, registered designs, trademarks, service marks and know-how and the rights to apply for any of the foregoing) (“the Intellectual Property Rights”) shall belong to the Buyer absolutely. The Seller hereby assigns the Intellectual Property Rights to the Buyer with the intent that upon the making or creation thereof of the Intellectual Property Rights shall automatically vest in the Buyer.
5) The Seller shall at the Buyers request (and notwithstanding the termination of the Contract) sign and execute and procure the signature and execution of all such documents and do all such acts as the Buyer may reasonably require:-
a) To vest the legal title in, apply for, obtain and maintain in force in the Buyers sole name (unless it otherwise directs) the Intellectual Property Rights;
b) To resist any objection or opposition to obtaining, and any petitions or applications for revocation of, any of the Intellectual Property Rights;
c) To bring any proceedings for infringement of any of the Intellectual Property Rights.
6) (The Seller irrevocably undertakes that neither it nor any other person will assert against the Buyer or any third party any moral rights in relating to the Intellectual Property Rights and warrants that all such moral rights are irrevocably waived and extinguished. For the purpose of this Condition “moral rights” shall have the meaning ascribed thereto by the Copyright, Designs and Patent 1988 Act (or any statutory amendment or re-enactment thereof) and all rights similar or corresponding thereto subsisting in any country of the world from time to time.
7) All containers, pallets and other packing materials supplied by the Buyer to the Seller shall be maintained in good condition and shall remain the Buyer’s property at all times.
8) At the Buyer’s request, the Seller shall promptly return the Material and Equipment and the said containers, pallets and packing materials to the Buyer.
9) Without prejudice to the Seller’s liability under the foregoing paragraphs of this Condition, the Seller shall maintain such insurance as the Buyer may stipulate in respect of the Material and the Equipment and as shall be necessary to cover the said liability of the Seller and the Seller shall produce to the Buyer on demand either:-
a) The policies of such insurance and the receipts for all premiums paid thereunder; or
b) A current certificate of insurance from the insurers under such policies.
- 9. TRANSFER OF TITLE
The title to the Goods shall pass to the Buyer on receipt and acceptance of the goods or service specified in the contract but without prejudice to:-
a) The passing of Title at an earlier time under any statue of rule law;
b) Any right of rejection which may accrue to the Buyer whether under these Conditions or otherwise.
- 10. REJECTION
1) Without prejudice to any of its rights the Buyer may by notice in writing to the Seller reject any or all of the Goods if the Seller fails to comply with any of his obligations under the Contract.
2) The Buyer shall when giving notice of rejection specify the reason therefor and the Seller shall remove such Goods at its own risk and expense. In such case the Seller shall at the Buyer’s option :-
a) Replace such rejected Goods with goods which are in all respects in accordance with the Contract or credit the Buyer with the invoice price thereof and reimburse the Buyer all freight and handling costs reasonably incurred by the Buyer and/or for which it may have been liable in respect of such Goods; and/or
b) Reimburse the Buyer all freight and handling costs reasonably incurred by the Buyer in the implementation of a stock recovery, recall or market withdrawal of the Goods in any part of the world.
- 11. PAYMENT
Unless otherwise agreed in writing payment shall be 60 Days due at the end of the month following the month of delivery of the Goods or performance of the Services.
- 12. STATUTORY REQUIREMENTS
The Seller warrants that the design, construction and quality of all goods to be supplied under this Contract and the quality of the services will comply in all respects with all relevant requirements of any Statute, Statutory Rule or Order or other instrument having the force of law which may be in force in the United Kingdom at the time when the same are supplied.
- 13. ASSIGNMENT AND SUB-CONTRACTING
1) The Seller shall not without the Buyers prior written consent assign, sub contract or transfer the Contract of any of its rights or obligations thereunder to any person, firm or company.
2) The Buyer may assign the Contract or any of its rights or obligations under the Contract without the prior consent of the Seller.
- 14. BANKRUPTCY OR LIQUIDATION
1) If the Seller being an individual (or when the Seller is a firm, any partner in that firm) shall at any time become bankrupt, or shall have a receiving order or administrative order made against him or shall make a composition or arrangement with or for the benefit of his creditors or if the Seller being a company shall pass a resolution or the Court shall make an order that the Company shall be wound up (not being a Member’s winding up for the purse of a bona fide solvent reconstruction or amalgamation) or if any receiver, administrative receiver or administrator shall be appointed of the whole or any part of its assets or the Seller shall suffer anything analogous to any of the foregoing under any laws of any jurisdiction then the Buyer shall be at liberty;
a) To cancel the Contract summarily by notice in writing without compensation to the Seller; or
b) To give such receiver, administrative receiver, administrator or liquidator or other person the option of carrying out the Contract.
2) The exercise of any of the rights granted to the Buyer under paragraph (1) hereof shall not prejudice or affect any right of action or remedy which may have accrued or may accrue thereafter to the Buyer.
- 15. WARRANTY
Without prejudice to any other remedies the Buyer, the Seller shall as soon as reasonably practicable repair or replace all Goods which are or become defective during the period of 12 (twelve) months from the date of delivery where such defect occurs under proper usage and is due to faulty design, the Seller’s erroneous instructions as to use or erroneous data or inadequate or faulty materials or workmanship, or any breach by the Seller of any provision of the Contract. Repairs and replacement shall themselves be subject to the foregoing obligations for a period of 12 (twelve) months from the date of delivery, reinstallation or passing of tests (if any) whichever is appropriate after repair or replacement. If any Services are found to have been performed defectively within 12 (twelve) months of the date of their performance the Seller shall forthwith upon notice thereof re-perform the same.
- 16. INDEMNITY
1) The Seller shall indemnify the Buyer against all actions, suits, claims, demands, costs, charges, damages, losses and expenses suffered or incurred by the Buyer and/or for it may be liable to any third party due to or arising from or in connection with :-
a) The negligent or wilful acts or omissions of the Seller, his servants or contractors;
b) The breach of any provision of the Contract the Seller;
c) Any defect in the workmanship materials or design of the Goods or their packaging;
d) Any infringement or alleged infringement of any patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right for or relating to the Goods or the Services unless such infringement has occurred directly as a result of any specification supplied by the Buyer.
2) In the event that the Buyer is the subject of any such actions, suits, claims referred to in Condition 16 (1), above the Seller shall at the request of the Buyer render such assistance as the Buyer may reasonably require in settling or defending the same.
3) The Seller shall maintain insurance in a form approved by the Buyer (such approval not to be unreasonably withheld or delayed) against liabilities described in Condition 16(1) and shall at the request of the Buyer from time to time produce evidence of such insurance and receipt of the premiums therefor.
- 17. MARKING
Unless otherwise agreed in writing by the Company the Seller shall not mark the Goods with any trade name, mark and/or device whatsoever.
- 18. FORCE MAJEURE
The performance of the Buyer of any of its obligations under the Contract may be deemed suspended by the Buyer by giving notice in writing to the Seller if such performance is prevented or hindered by any circumstances beyond its reasonable control including (but not limited to) strikes, lock-outs, accidents, war, fire, reductions in or unavailability of power or breakdown of plant or machinery. If the cause of such suspension shall continue for more than three months either party shall have the right to terminate the Contract upon giving not less than seven days prior notice to the other and the only liability of the Buyer shall be to pay the Seller for Goods received by the Buyer and Services performed prior to the date of the suspension.
- 19. INDEPENDENT CONTRACTORS
Nothing in these Terms and Condition shall be construed as creating a partnership or joint venture or as conferring upon the Seller any authority to bind the Buyer or act as agent for or on behalf of the Buyer and the Seller shall not purport to do so. The relationship between the Seller and the Buyer shall be that of independent contractors.
- 20. GOVERNMENT CONTRACTS
In the event that the Buyer’s Order is placed in connection with or for the purpose of a contract with a Government Department the Buyer’s Order shall be subject to the condition that the Seller complies with all conditions, rules and regulations of the appropriate Government Department as are applicable to the performance of the contract with such Government Department. Particulars of such conditions, rules and regulations shall be supplied to the Seller upon request and in the absence of such request the Seller shall be deemed to have knowledge thereof.
- 21. LAW OF THE CONTRACT
The Contract shall in all respects be governed by English Law and shall be deemed to have been made in England and the parties agree to submit to the non-exclusive jurisdiction of the courts of England and it is agreed that the High Court in Manchester is a convenient forum for the hearing of any dispute.
- 22. HEADINGS
The headings in these Conditions are intended for reference only and do not affect their construction.